Learned Hand in Europe: a Study in the Comparative Law and Economics

When investigating the possibilities of uniform European private law, questions regarding unity and diversity of legal concepts emerge. Aim of this paper is to indicate how Law and Economics can contribute to the existing views on this matter, thereby focussing more on unity than on diversity. The branch of Law and Economics that deals with the comparison of legal systems and concepts is known as comparative Law and Economics. Researchers from this field have spent ample attention to the possibility that European unity of law can be reached through legal transplants, where courts transplant a concept from another legal system in their own legal system. A second approach within comparative Law and Economics is the common core approach, where Law and Economics helps in identifying legal concepts that might have different names or formal requisites in different legal systems, but that in practice solve a similar case in a similar manner. In section 2, the main differences between common law and civil law are discussed from a Law and Economics point of view. These differences are often regarded as the main obstacles in reaching uniform private law. In section 3, the comparative Law and Economics approach will be discussed in greater detail concept of negligence and the comparable concepts such as Fahrlässigkeit and onzorgvuldigheid will be presented as an example of a common core.